Citation Nr: 0332479
Decision Date: 11/21/03 Archive Date: 12/01/03
DOCKET NO. 96-42 168 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
the Commonwealth of Puerto Rico
THE ISSUES
1. Entitlement to service connection for post-traumatic
stress disorder (PTSD).
2. Entitlement to service connection for bilateral carpal
tunnel syndrome, claimed as secondary to the service-
connected right wrist disability.
3. Entitlement to an increased rating for residuals of right
wrist fracture with necrosis of the lunate bone and
ankylosis.
REPRESENTATION
Appellant represented by: National Veterans Legal
Services Program, Inc.
ATTORNEY FOR THE BOARD
G. Jivens-McRae, Counsel
REMAND
On April 23, 2003, the Board of Veterans' Appeals (BVA or
Board) ordered further development in your case. Thereafter,
your case was sent to the Board's Evidence Development Unit
(EDU), to undertake the requested development.
Prior to May 1, 2003, the Board's regulations provided that
if further evidence, clarification of the evidence,
correction of a procedural defect, or any other action was
essential for a proper appellate decision, a Board Member or
panel of Members could direct Board personnel to undertake
the action essential for a proper appellate decision. See 38
C.F.R. § 19.9(a)(2) (2002).
However, on May 1, 2003, the United States Court of Appeals
for the Federal Circuit ("Federal Circuit") invalidated 38
C.F.R. § 19.9(a)(2), in Disabled American Veterans v.
Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003)
(hereinafter "DAV"). The Federal Circuit held that 38
C.F.R. § 19.9(a)(2), in conjunction with the amended rule
codified at 38 C.F.R. § 20.1304, was inconsistent with 38
U.S.C. § 7104(a), because 38 C.F.R. § 19.9(a)(2), denies
appellants "one review on appeal to the Secretary" when the
Board considers additional evidence without having to remand
the case to the agency of original jurisdiction (AOJ) for
initial consideration, and without having to obtain the
appellant's waiver.
Following the Federal Circuit's decision in DAV, the General
Counsel issued a precedential opinion, which concluded that
DAV did not prohibit the Board from developing evidence in a
case before it, provided that the Board does not adjudicate
the claim based on any new evidence it obtains unless the
claimant waives initial consideration of such evidence by
first-tier adjudicators in the Veterans Benefits
Administration (VBA). VAOPGCPREC 1-03. Based on this
opinion, the Board continued, for a short time, to request
development via the Board's EDU.
Recently, in light of the Federal Circuit Court's decision
and other policy considerations, the Department of Veterans
Affairs (VA) determined that VBA would resume all development
functions. In other words, aside from the limited class of
development functions that the Board is statutorily permitted
to carry out, see 38 U.S.C.A. §§ 7107(b), 7109(a), all
evidence development will be conducted at the regional office
(RO) level.
In the event that you appeared at a hearing before a Veterans
Law Judge (VLJ) other than the VLJ signing this remand, be
advised that if your case is returned to the Board, it will
be reassigned to the VLJ who conducted your hearing.
Accordingly, this matter is REMANDED to the RO for the
following:
1. Ask the veteran to identify all VA
and non-VA health care providers that
have treated him for his PTSD since 1991,
and for his right wrist and bilateral
carpel tunnel syndrome disabilities since
February 1997. Obtain records from each
health care provider the appellant
identifies.
2. Obtain the veteran's medical records
from the VA Medical Center in San Juan,
Puerto Rico for any treatment accorded
him for his PTSD from 1991 to the present
and for his right wrist and bilateral
carpel tunnel syndrome disabilities since
February 1997. Please obtain the
following type(s) of records: inpatient
records and outpatient records, including
any and all mental hygiene records, any
and all clinical medical records.
3. The veteran seeks service connection
for PTSD. Send a development letter
asking the veteran to give a
comprehensive statement regarding his
averred stressors. Ask him to identify
the units to which he was assigned when
the stressful events occurred, and ask
him to identify as accurately as possibly
when he was so assigned. Ask him to
comment specifically about his
participation in combat during the Korean
Conflict, as well as any other stressful
situations he considers relevant.
4. Obtain the veteran's service
personnel records, or "201 file" from
the National Personnel Records Center.
5. After giving the veteran an
appropriate period of time to submit a
stressor statement and after receiving
the veteran's service personnel records
(or negative response) from NPRC, prepare
a letter asking the U.S. Armed Services
Center for Research of Unit Records
(USASCRUR) to provide any available
information which might corroborate the
veteran's alleged in-service stressors.
The veteran's separation and service
medical records reflect that he was
assigned to Company "B" and Company "G",
296th Infantry Regiment on or about
February to May 1952. He was further
assigned to HQ Company, 14th Infantry,
25th Infantry Division, but the dates of
the assignment are not clear from the
record before the Board.
6. Provide USASCRUR with a description
of the stressors the veteran may identify
in response to the development letter,
and, in any event, provide a description
of the stressors he identified in his
December 1991 statement. In addition,
provide USASCRUR with copies of service
personnel records obtained showing
service dates, duties, and units of
assignment.
7. The evidence shows that the veteran
was employed by the United States Postal
Service in Ponce, Puerto Rico. Please
contact this employer and request a copy
of any and all medical records. If the
veteran retired or was counseled or
dismissed due to misconduct or
disability, please request a copy of that
determination and any and all supporting
evidence.
8. When the above development has been
completed, make arrangements with the
appropriate VA medical facility for the
veteran to be afforded psychiatric and
orthopedic examinations to determine the
nature, extent, and etiology of any
neuro-psychiatric condition to include
PTSD, and his bilateral carpal tunnel
syndrome disability, and the nature and
extent of his service-connected right
wrist disability. The examination for
PTSD should be conducted by a qualified
specialist who has not previously
examined or treated the veteran. All
indicated tests and studies should be
performed. If other examinations by
specialists are indicated, they should be
conducted. Send the claims folder to the
examiners for review. The examiners
should address the following matters:
(a). Summarize the medical history,
including the onset and course of the
veteran's claimed neuro-psychiatric
disorder and bilateral carpal tunnel
syndrome disability, and his service
connected right wrist disability.
(b). Describe any current symptoms and
manifestations attributed to the claimed
neuro-psychiatric disorder and bilateral
carpal tunnel syndrome disability, and
his service-connected right wrist
disability.
(c). Complete any diagnostic and
clinical tests required and provide
diagnoses for all neuro-psychiatric
symptoms manifested, and for all symptoms
associated with bilateral carpel tunnel
syndrome and his service-connected right
wrist disability.
(d). Provide an opinion as to the date
of onset and etiology for any currently
manifested neuro-psychiatric disorder to
include PTSD, and bilateral carpel
syndrome disability. In making these
opinions, the examiner is advised as
follows:
Please note that the veteran has been
awarded the Combat Infantryman Badge,
which is considered evidence of
participation in combat against the enemy
under the regulations effective during
the pendency of the veteran's claim.
Reference is made to the October 1999 and
August 1998 VA examinations. Both
reports conclude that no etiological
relationship exists between the veteran's
averred bilateral carpal tunnel syndrome
and the service connected right wrist
disability.
In the October 1999 VA examination, the
examiner opined that the bilateral carpal
tunnel syndrome was secondary to diabetes
mellitus.
In the August 1998 VA examination, the
physician determined that the veteran did
not have carpal tunnel syndrome at all.
Rather, this physician diagnosed
peripheral neuropathy.
The Board notes that in each case, the
examiner reviewed electromyography test
results and nerve conduction studies that
were conducted in 1997, by private
physicians. The VA has not conducted its
own independent studies.
The record contains the opinions of two
private physicians:
There was no evidence of Diabetic
Neuropathy. Our diagnostic impression is
that median nerve compression is
mechanically associated to Right Hand
Ankylosing condition," proffered by
Alexis Echevarria, M.D., in December
1998, and
"According to the findings, [the
veteran] had evidence of bilateral median
nerve entrapment neuropathy at wirst
(sic) (Carpal Tunnel Syndrome) with
superimposed findings of an early sensory
peripheral polyneuropathy. The findings
on nerve conduction studies were
consistent with bilateral Carpal Tunnel
Syndrome as the leading diagnosis," by
Noel J. Arnau, M.D., F.A.B.P.M.R., in
January 1999.
In contrast to the VA examination
reports, Drs. Echevarria and Arnau based
their opinions on electromyography tests
and nerve conduction studies and analyses
that they themselves conducted.
9. After the development requested above
has been completed to the extent
possible, the RO should again review the
record. If any benefit sought on appeal
remains denied, the appellant and
representative, if any, should be
furnished a supplemental statement of the
case and given the opportunity to respond
thereto.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The appellant need take no action
unless otherwise notified.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.44-8.45 and
38.02-38.03.
S. KELLER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2002).